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11/09/89 In Re Estate of Walter Szorek

November 9, 1989



Plaintiff-Appellant, v.

Liberty Savings & Loan Association, Defendant-Appellee)

551 N.E.2d 697, 194 Ill. App. 3d 750, 141 Ill. Dec. 510 1989.IL.1756

Appeal from the Circuit Court of Cook County; the Hon. Frank M. Siracusa, Judge, presiding.

As Modified and Refiled February 16, 1990.


PRESIDING JUSTICE LaPORTA delivered the opinion of the court. McNAMARA and RAKOWSKI,* JJ., concur.


This is an appeal from an award of attorney fees and costs in favor of defendant, Liberty Savings and Loan Association, and against plaintiff, Judy Aust, following a hearing on a declaratory judgment action filed by plaintiff against defendant which was consolidated with a citation to recover assets filed in a probate proceeding by the administrator of the estate of Walter Szorek, deceased. Both actions sought to recover funds on deposit in a certificate of deposit in the names of decedent and plaintiff as joint tenants with right of survivorship.

Walter Szorek died intestate on March 20, 1987, after several years of illness, a leg amputation, and a number of hospitalizations. Prior to his death and at the direction of Szorek, plaintiff transferred approximately $72,000 of Szorek's funds then on deposit in a Fairfield Savings and Loan account to a certificate of deposit with defendant Liberty Savings and Loan Association. The certificate of deposit account was opened on February 6, 1987, in the names of Walter Szorek and plaintiff as joint tenants with right of survivorship.

Upon Szorek's death, plaintiff made the necessary funeral and burial arrangements. Sometime thereafter, when plaintiff attempted to collect the funds from defendant as surviving joint tenant, she was advised by an officer of defendant association that because of a discrepancy of Szorek's date of birth on the signature card and his date of birth on the death certificate, they would not pay the funds to her.

Within weeks of Szorek's death, the public administrator opened a probate estate and was appointed administrator by the court. The heirship identified unknown heirs as the beneficiaries of the estate. It should be noted that 16 months later, when the estate was closed, the remaining estate assets were paid over to the Cook County treasurer to be held for the unknown heirs of Szorek. The inventory subsequently filed by the administrator listed as estate assets a Fairfield Savings and Loan Association checking account, a Fairfield Savings and Loan Association certificate of deposit, a Medicare check, and the certificate of deposit at defendant association, all for a total estate of $151,592.62. On August 3, 1987, the administrator filed a petition to recover assets for the joint tenant certificate of deposit funds in defendant's association with notice served on defendant but without notice served on plaintiff. The record discloses that notice to plaintiff was misaddressed, not delivered, and returned to sender.

On August 3, 1987, plaintiff filed a declaratory judgment suit in chancery against defendant to recover the joint tenancy funds in the certificate of deposit account. Plaintiff moved for summary judgment on September 8, 1987. Defendant moved to consolidate the chancery case with the probate litigation, and the matters were consolidated and thereafter proceeded in the probate court. Plaintiff's summary judgment motion was denied on January 26, 1988.

Following a hearing on the consolidated citation and declaratory judgment petitions on April 8, 1988, the trial Judge ordered defendant to turn over the entire account balance plus accrued interest to plaintiff except for the sum of $3,500 reserved pending a hearing on defendant's petition for fees and costs. On July 19, 1988, the trial Judge awarded defendant the sum of $3,757.39, for attorney fees ($3,647) and costs ($110.39) to be paid from the funds reserved and the balance to be paid by plaintiff. Plaintiff's petition for reconsideration was denied, and plaintiff filed this appeal challenging only the award of fees and costs to the defendant.

Plaintiff raises three grounds for her appeal: (1) that she did not enter into any agreement with the defendant for payment of attorney fees incurred by defendant in defense of the action brought by plaintiff, the depositor and surviving joint tenant, to recover account proceeds which the court found to be rightfully hers; (2) that by its failure to pay the account proceeds to her as the surviving joint tenant, thereby compelling her to file suit to recover funds rightfully hers, defendant is precluded from recovering attorney fees and costs even if an agreement to pay such expenses exists; and (3) that an award of attorney fees and costs in the amount of $3,757.39 is patently unreasonable.

We first consider the agreement entered into by the parties when the account was created. For purposes of this appeal we consider the agreement only as it pertains to plaintiff and defendant.

Upon deposit of Szorek's funds, defendant required plaintiff and Szorek to execute signature cards as part of its customary process in opening a certificate of deposit account. The ...

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